Opinion
May 16, 1991
Appeal from the Supreme Court, New York County (Ira Beal, J.).
Viewing the evidence in a light most favorable to the People (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), and giving due deference to the jury's findings as to credibility (People v Bleakley, 69 N.Y.2d 490), we find that the People proved the defendant guilty of the robbery counts beyond a reasonable doubt. Forcible taking was proven through evidence that the defendant and his co-defendant separated the complainant from his wallet through a forcible struggle (see, People v Rivera, 160 A.D.2d 419, lv denied 76 N.Y.2d 795, 1024), particularly given the evidence that a knife was used. Intent was sufficiently proven through the totality of facts attendant to the incident (People v [Geraldo] Lopez, 161 A.D.2d 670, lv denied 76 N.Y.2d 791).
The court's charge on the jury's use of statements by a witness was deficient in that there was no indication that prior inconsistent statements could not be considered for the truth of their contents, but only as to the credibility of the witness (see, People v O'Hare, 117 A.D.2d 757, lv denied 67 N.Y.2d 948). Nonetheless, since the charge as given was more favorable to the defendant, and in light of overwhelming evidence of the defendant's guilt, the error was harmless beyond a reasonable doubt (People v Hynes, 146 A.D.2d 587, lv denied 73 N.Y.2d 978).
Concur — Rosenberger, J.P., Ellerin, Wallach, Ross and Smith, JJ.